1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please

2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 

3 Please also note that this electronic memorandum opinion may contain computer-generated

4 errors or other deviations from the official paper version filed by the Court of Appeals and does

5 not include the filing date. 

6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 STATE OF NEW MEXICO,

8 Plaintiff-Appellee,

9 v. No. 28,467

10 RUSSELL GONZALES, 

11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY

13 Eugenio S. Mathis, District Judge

14 Gary K. King, Attorney General

15 Santa Fe, NM

16 Max Shepherd, Assistant Attorney General

17 Albuquerque, NM

18 for Appellee

19 Hugh W. Dangler, Chief Public Defender

20 Eleanor Brogan, Assistant Appellate Defender

21 Santa Fe, NM

22 for Appellant

23 MEMORANDUM OPINION

24 SUTIN, Judge.
2

1 Defendant Russell Gonzales appeals his convictions for aggravated battery

2 against a household member (deadly weapon), contrary to NMSA 1978, Section 30-3-

3 16(C) (2008); aggravated assault against a household member (deadly weapon),

4 contrary to NMSA 1978, Section 30-3-13(A)(1) (1995); tampering with evidence,

5 contrary to NMSA 1978, Section 30-22-5(A) (2003); and aggravated battery against

6 a household member, contrary to Section 30-3-16(A). We are not persuaded by any

7 of Defendant’s assertions of error, and we therefore affirm.

8 Factual and Procedural Background

9 Defendant was charged in February 2007 with multiple felonies arising out of

10 several violent incidents involving his domestic partner, Paula Hern. On September

11 28, 2007, Defendant filed a motion to dismiss, alleging that he had not been able to

12 take Ms. Hern’s statement. In the motion, Defendant stated that he filed a notice to

13 take Ms. Hern’s statement on September 24, 2007. The notice specified that the

14 statement would be taken on September 28, 2007, at 9:00 a.m. in the prosecutor’s

15 office. However, Ms. Hern did not show up. Additionally, the motion stated that

16 Defendant had sought Ms. Hern’s psychiatric and psychological records, and the

17 records had not been provided by the State. Defendant argued that the failure to

18 provide the records and afford him an opportunity to take Ms. Hern’s statement denied

19 him his right to confront the witness. On October 1, 2007, Defendant filed a
3

1 supplement to his motion to dismiss in which he stated that after filing the motion, the

2 State informed him that Ms. Hern would be available for an interview at the

3 prosecutor’s office on October 1. When defense counsel arrived to interview Ms.

4 Hern, the prosecutor informed him that she had missed her scheduled flight, had taken

5 a subsequent flight, she was in Albuquerque, but was unable to get transportation to

6 the prosecutor’s office in Las Vegas, New Mexico.

7 The district court denied the motion to dismiss. At the hearing on the motion

8 on October 3, the court noted that Defendant had not served a notice to take Ms.

9 Hern’s statement sooner even though Ms. Hern was on the State’s witness list, and the

10 defense was aware that she was a witness. The court also noted that Ms. Hern had

11 testified at the preliminary hearing, so Defendant had some idea of what her testimony

12 would be. The district court further noted that Defendant had not formally sought

13 disclosure of the medical records, and the State could not be expected to guess that

14 Defendant wanted them. The State made Ms. Hern available for a statement that

15 afternoon. Prior to the start of trial, Defendant filed a motion in limine to prohibit the

16 State from calling Ms. Hern as a witness after she refused to allow Defendant access

17 to her medical records. Defense counsel argued that refusing the release of her

18 medical information violated Defendant’s right to confront the witness. The court

19 noted its concerns that Defendant’s counsel had not filed a motion to compel
4

1 disclosure of the records. The court granted the motion in limine and ordered Ms.

2 Hern to produce the medical records Defendant sought before she would be allowed

3 to testify.

4 At trial, Ms. Hern testified that on January 5, 2007, she and Defendant were

5 having dinner at the home of their friends when they began to argue. The argument

6 escalated to Defendant physically assaulting Ms. Hern. Ms. Hern went home after the

7 friends stopped the fight. Defendant later returned to their home and became violent

8 when she asked him to leave. Ms. Hern testified that Defendant retrieved a gun from

9 the bedroom and hit her twice on the head with it, which caused her to bleed

10 extensively from her scalp. Defendant then forced her into the shower to try to and

11 stop the bleeding. The bleeding did not stop, and Defendant pulled Ms. Hern out of

12 the shower by her hair and forced her to look in the bathroom mirror. Ms. Hern

13 testified that Defendant then told her that she would die that evening and fired the gun

14 at her reflection in the mirror. Ms. Hern testified that Defendant then forced her to

15 clean up her blood in the area where the kitchen meets the living room. Ms. Hern

16 testified that blood found in her home was her blood and that her two dogs were not

17 the source of the blood.

18 Ms. Hern testified that there was no further physical violence until January 17,

19 when Defendant grabbed her and shoved her face into dishwater and threw an ashtray
5

1 at her hitting her in the back. Later that day when Defendant was in a back room, Ms.

2 Hern left and went to her sister’s home. The following day, she sought medical

3 attention. Janea Chavez, a nurse at Alta Vista Hospital, testified that she examined

4 Ms. Hern in the emergency room on January 18, 2007. Nurse Chavez testified that

5 Ms. Hern had new and old bruises on her body and lacerations on her head. Dr. Mel

6 Olivares testified that he examined Ms. Hern at Alta Vista Hospital on January 18.

7 Dr. Olivares testified that he observed two lacerations on her scalp, bruises on her

8 nose and jaw, tenderness on her ribs and abdomen, and greatly restricted range of

9 motion in her back and neck.

10 Officer Frank Casaus of the New Mexico State Police testified that he

11 interviewed Ms. Hern at the hospital and observed injuries on her head and back and

12 scratches on her neck. After interviewing Ms. Hern, he prepared an arrest warrant for

13 Defendant, as well as a search warrant for the property where Defendant lived with

14 Ms. Hern, and was present during the search. Sergeant Carlos Mendoza of the New

15 Mexico State Police testified that he assisted in executing a search warrant for the

16 residence where Defendant and Ms. Hern lived. Sergeant Mendoza testified that he

17 observed two areas during the search that appeared to him to be blood. These areas

18 coincided with Ms. Hern’s statement as to where the blood would be found. Sergeant

19 Mendoza testified that a presumptive test proved that the stain was blood, but the
6

1 presumptive test could not determine whether the blood was human or animal. No

2 further testing on the blood samples was requested, therefore no further testing was

3 done. Sergeant Mendoza also testified that three guns, a brown ashtray, and a piece

4 of a broken mirror from under the bed in the master bedroom were recovered from the

5 residence. Sergeant Mendoza further testified that officers found what appeared to be

6 a bullet hole that went through the bathroom mirror and into the back of the wall of

7 the living room, causing a protrusion.

8 The jury acquitted Defendant of kidnapping and convicted him of aggravated

9 assault on a household member (deadly weapon), aggravated battery on a household

10 member (deadly weapon), aggravated battery on a household member, and tampering

11 with evidence. Defendant appeals. Additional facts are set forth later in this opinion.

12 Analysis

13 Defendant raises four issues on appeal. Defendant argues that (1) he received

14 ineffective assistance of counsel, (2) he was denied his right to a fair trial due to

15 cumulative error by the district court, (3) the prosecutor impermissibly vouched for

16 Ms. Hern’s credibility in rebuttal closing argument, and (4) his right to be free from

17 double jeopardy was violated. We address each argument in turn. 

18 A. Ineffective Assistance of Counsel
7

1 “The test for ineffective assistance of counsel is whether defense counsel

2 exercised the skill of a reasonably competent attorney.” State v. Aker,

3 2005-NMCA-063, ¶ 34, 137 N.M. 561, 113 P.3d 384. “To establish a prima facie

4 case of ineffective assistance of counsel, [the d]efendant must show that (1) counsel’s

5 performance was deficient in that it fell below an objective standard of

6 reasonableness; and (2) that [the d]efendant suffered prejudice in that there is a

7 reasonable probability that, but for counsel’s unprofessional errors, the result of the

8 proceeding would have been different.” Id. (internal quotation marks and citation

9 omitted). “When an ineffective assistance claim is first raised on direct appeal, we

10 evaluate the facts that are part of the record. If facts necessary to a full determination

11 are not part of the record, an ineffective assistance claim is more properly brought

12 through a habeas corpus petition, although an appellate court may remand a case for

13 an evidentiary hearing if the defendant makes a prima facie case of ineffective

14 assistance.” State v. Roybal, 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61.

15 Defendant asserts that his trial counsel’s performance was deficient in a number

16 of ways. Defendant first argues that counsel failed to follow up on his pro se motion

17 to waive the jury trial. The record indicates that Defendant had legal counsel at the

18 time charges were filed against him in February 2007 and continuing thereafter.

19 During that time, Defendant filed a number of pro se handwritten documents. The
8

1 record indicates that Defendant filed a pro se handwritten request for a bench trial on

2 August 8, 2007. Neither the request nor the record indicates that defense counsel

3 received or should have known about this particular request. Nor is there any

4 indication in the record that the district court ever ruled on that motion or that defense

5 counsel ever followed up on that motion. Based on the record before us, we cannot

6 surmise why the request was not pursued. However, the decision whether to waive

7 a jury trial is a matter of trial strategy. See State v. Ciarlotta, 110 N.M. 197, 201, 793

8 P.2d 1350, 1354 (Ct. App. 1990) (stating that “[t]he decision of whether to proceed

9 with a jury is a tactical one”). “On appeal, we will not second guess the trial strategy

10 and tactics of the defense counsel.” Lytle v. Jordan, 2001-NMSC-016, ¶ 43, 130 N.M.

11 198, 22 P.3d 666 (internal quotation marks and citation omitted). Defendant cites to

12 Rule 16-102(A) NMRA of the Rules of Professional Conduct, which provides that

13 “[i]n a criminal case, the lawyer shall abide by the client’s decision, after consultation

14 with the lawyer, as to . . . whether to waive [a] jury trial.” Defendant asserts that trial

15 counsel failed to act on his multiple requests to waive a jury trial. However, the

16 record before us on appeal is insufficient to support this contention, and we are in no

17 position to determine what Defendant and his attorney may or may not have discussed

18 with respect to waiving a jury trial. We therefore cannot consider this claim. See

19 State v. Telles, 1999-NMCA-013, ¶ 25, 126 N.M. 593, 973 P.2d 845 (filed 1998)
9

1 (stating that “[w]ithout a record, we cannot consider [a d]efendant’s claim of

2 ineffective assistance of counsel on direct appeal”).

3 Defendant next asserts that trial counsel was ineffective because he failed to

4 move for a change of venue on the grounds that Ms. Hern’s father was a former judge

5 in the city where the crimes occurred. However, we believe that a consideration of the

6 various advantages and disadvantages of trial in a particular venue and whether a

7 defendant will have his best chance with a local jury is a classic strategy decision.

8 Consequently, here, it does not establish ineffective assistance of counsel. See State

9 v. Jordan, 116 N.M. 76, 81, 860 P.2d 206, 211 (Ct. App. 1993) (stating that “this

10 Court will not second-guess matters of trial strategy or tactics” and that the defendant

11 “must prove both his counsel’s incompetence and prejudice”). Additionally,

12 Defendant has not established that a fair and impartial jury could not be empaneled

13 or that the jury venire was prejudiced against him. Accordingly, we believe that

14 Defendant has failed to establish ineffective assistance of counsel and prejudice. See

15 Duncan v. Kerby, 115 N.M. 344, 348-49, 851 P.2d 466, 470-71 (1993) (stating that

16 prejudice must be shown before a defendant is entitled to relief based on ineffective

17 assistance of counsel); State v. Chavez, 2007-NMCA-162, ¶ 24, 143 N.M. 126, 173

18 P.3d 48 (stating that in order to establish ineffective assistance of counsel a defendant
10

1 must demonstrate that but for counsel’s unprofessional errors, the outcome of the

2 proceeding would have been different). We therefore reject this claim.

3 Defendant argues that his trial counsel failed to submit a notice of alibi or a

4 witness list and failed to properly investigate the case. “The decision whether to call

5 a witness is a matter of trial tactics and strategy within the control of trial counsel.”

6 State v. Orosco, 113 N.M. 789, 797, 833 P.2d 1155, 1163 (Ct. App. 1991), aff’d, 113

7 N.M. 780, 788, 833 P.2d 1146, 1154 (1992). Again, we will not second guess the

8 tactics or strategy of defense counsel. See State v. Sanchez, 120 N.M. 247, 254, 901

9 P.2d 178, 185 (1995). Additionally, Defendant has failed to demonstrate that any

10 potential witnesses were willing to appear and would have given favorable testimony.

11 See, e.g., State v. Hernandez, 115 N.M. 6, 18, 846 P.2d 312, 324 (1993) (rejecting a

12 similar claim of ineffective assistance of counsel due to the defendant’s failure to

13 demonstrate that the putative witnesses would have been willing to testify and would

14 have presented favorable evidence). Additionally, we find nothing in the record to

15 indicate a failure to investigate or that a viable alibi defense existed for the charges for

16 which Defendant was convicted. See Telles, 1999-NMCA-013, ¶ 25 (stating that this

17 Court will not review an allegation of ineffective assistance of counsel that depends

18 on matters outside of the record). 
11

1 Defendant next argues that his trial counsel failed to subpoena Ms. Hern, failed

2 to timely file notice to take her statement, and failed to timely request her medical

3 records. Defendant argues that, had defense counsel timely made these requests, the

4 district court would have dismissed the case for the State’s failure to make the witness

5 available. However, we cannot say that the State would have failed to make Ms. Hern

6 available for a statement had counsel timely filed a motion to take her statement

7 pursuant to Rule 5-503(A) NMRA, which states that a party may obtain the statement

8 of any person with information subject to discovery by filing a “notice of statement”

9 not less than five days before the scheduled date of the statement. Additionally, we

10 will not engage in speculation as to what the district court would have done.

11 Defendant also asserts that his trial counsel’s failure to make these requests timely

12 resulted in a denial of his right to confront Ms. Hern. However, Defendant makes no

13 specific showing how counsel’s cross-examination of Ms. Hern would have been

14 improved had counsel timely filed a motion to take her statement and timely filed a

15 request for her medical records. Defendant has therefore failed to demonstrate

16 prejudice. See In re Ernesto M., Jr., 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d

17 318 (“An assertion of prejudice is not a showing of prejudice.”); see also Chavez,

18 2007-NMCA-162, ¶ 24 (stating that, in order to establish ineffective assistance of
12

1 counsel, a defendant must demonstrate that but for counsel’s unprofessional errors,

2 the outcome of the proceeding would have been different). 

3 Finally, Defendant asserts that counsel was ineffective because he failed to

4 question Officer Casaus about his testimony at the preliminary hearing in which he

5 stated that some of the blood recovered from Defendant’s house was not human blood.

6 Defendant asserts that this would have furthered his theory of the defense which was

7 that the blood in the home came from an animal and that Ms. Hern was lying about

8 the source of the blood. However, we are in no position to determine whether cross9 examining Officer Casaus about his statement at the preliminary hearing would have

10 been effective. See State v. Hester, 1999-NMSC-020, ¶ 11, 127 N.M. 218, 979 P.2d

11 729 (“It is not the role of [an appellate court] on appeal to second guess trial tactics.”).

12 Counsel’s failure to mention the investigating officer’s prior testimony may have

13 reflected a rational determination that any inconsistency with the State’s blood

14 evidence at trial was of such minimal value that it was not worth bringing to the

15 attention of the jury. See generally State v. Jacobs, 2000-NMSC-026, ¶ 49, 129 N.M.

16 448, 10 P.3d 127 (“A prima facie case for ineffective assistance of counsel is not made

17 if there is a plausible, rational strategy or tactic to explain the counsel’s conduct.”).

18
13

1 For these reasons, we hold that Defendant has not established a prima facie case

2 of ineffective assistance of counsel. Defendant must pursue the issue, if at all, in a

3 collateral proceeding. See State v. Martinez, 1996-NMCA-109, ¶ 25, 122 N.M. 476,

4 927 P.2d 31 (stating that “[t]his Court has expressed its preference for habeas corpus

5 proceedings over remand when the record on appeal does not establish a prima facie

6 case of ineffective assistance of counsel”); see also State v. Baca, 1997-NMSC-059,

7 ¶ 25, 124 N.M. 333, 950 P.2d 776 (“A record on appeal that provides a basis for

8 remanding to the trial court for an evidentiary hearing on ineffective assistance of

9 counsel is rare. Ordinarily, such claims are heard on petition for writ of habeas

10 corpus[.]”). 

11 B. Cumulative Error

12 Defendant argues that he was denied his right to a fair trial due to cumulative

13 error by the district court. “The doctrine of cumulative error requires reversal when

14 a series of lesser improprieties throughout a trial are found, in aggregate, to be so

15 prejudicial that the defendant was deprived of the constitutional right to a fair trial.”

16 State v. Duffy, 1998-NMSC-014, ¶ 29, 126 N.M. 132, 967 P.2d 807, modified on other

17 grounds by State v. Gallegos, 2007-NMSC-007, ¶ 17, 141 N.M. 185, 152 P.3d 828.

18 Specifically, Defendant argues that the district court failed to inform the jury of the

19 charges against him at the outset of trial, denied him his right to confrontation by
14

1 allowing the late disclosure of discovery, improperly instructed the jury that only

2 charges for which there was sufficient evidence were being submitted, and improperly

3 limited the parties to thirty minutes for closing argument. For the following reasons,

4 we do not believe that Defendant was denied his right to a fair trial due to cumulative

5 error.

6 Defendant first argues that the district court failed to inform the jury of the

7 charges Defendant faced at the outset of the trial. Defendant did not object, and this

8 issue was not preserved. See State v. Varela, 1999-NMSC-045, ¶¶ 25-26, 128 N.M.

9 454, 993 P.2d 1280 (holding that to preserve an issue for appeal it is essential that a

10 party make a timely objection that specifically apprises the district court of the

11 claimed error and invokes an intelligent ruling thereon). “On appeal, the reviewing

12 court will not consider issues not raised in the trial court unless the issues involve

13 matters of jurisdictional or fundamental error.” State v. Wyman, 2008-NMCA-113, ¶

14 10, 144 N.M. 701, 191 P.3d 559. “A fundamental error occurs where there has been

15 a miscarriage of justice, the conviction shocks the conscience, or substantial justice

16 has been denied.” State v. Dietrich, 2009-NMCA-031, ¶ 52, 145 N.M. 733, 204 P.3d

17 748. “We may also conclude that a fundamental error has been committed upon a

18 determination that a trial court’s error was of such magnitude that it affected the trial

19 outcome.” Id. (internal quotation marks and citation omitted).
15

1 Rule 5-607(B) NMRA provides that, after the jury is selected and sworn in,

2 “initial instructions as provided in UJI Criminal shall be given by the court[.]” UJI

3 14-101 NMRA in part requires the district court to inform the jury of the common

4 name of the crimes for which the defendant is charged. Defendant asserts that the

5 district court instructed the jury that “Defendant has been charged with several crimes

6 and I will identify those for you at a later time.” The State explains that the court’s

7 introductory instructions to the jury began with “Defendant ha[s] been charged with

8 several offenses from kidnapping to aggravated battery on a household member.”

9 However, the district court did not later identify the common names of each crime

10 charged.

11 We do not believe that this rises to the level of fundamental error. See State v.

12 Cunningham, 2000-NMSC-009, ¶ 21, 128 N.M. 711, 998 P.2d 176 (“Parties alleging

13 fundamental error must demonstrate the existence of circumstances that shock the

14 conscience or implicate a fundamental unfairness within the system that would

15 undermine judicial integrity if left unchecked.” (internal quotation marks omitted)).

16 Defendant argues that the failure to instruct the jurors as to the common names of the

17 crimes charged prejudiced his defense because the jurors did not have a proper

18 framework in which to evaluate the evidence. However, the jury was given the

19 elements instructions for the crimes charged prior to deliberations. Additionally, the
16

1 jury acquitted Defendant of kidnapping. See State v. Lacey, 2002-NMCA-032, ¶ 21,

2 131 N.M. 684, 41 P.3d 952 (stating that the fact the jury acquitted the defendant of

3 three of five charges showed that it was able to carefully apply the law to the facts).

4 For these reasons, we do not believe that the jury did not have a proper framework in

5 which to deliberate, and we reject Defendant’s claim of error.

6 Defendant next argues that he was denied his Sixth Amendment right to

7 confrontation when the district court allowed the late disclosure of discovery by the

8 State. Defendant argues that, due to the delay in obtaining Ms. Hern’s medical

9 records and her statement, his right to confrontation was effectively limited, and he

10 was unable to test Ms. Hern’s credibility, detect bias, or otherwise challenge the

11 State’s version of the facts.

12 We disagree. “Violation of the right to confront witnesses must work some

13 prejudice to the defendant in order for there to be reversible error.” State v. Taylor,

14 103 N.M. 189, 195, 704 P.2d 443, 449 (Ct. App. 1985); see also State v. Griffin, 108

15 N.M. 55, 58, 766 P.2d 315, 318 (Ct. App. 1988) (holding that the “[f]ailure to disclose

16 a witness’[s] identity prior to trial in itself is not grounds for reversal” and that “[t]he

17 objecting party must show that he was prejudiced by such non-disclosure”). We do

18 not believe that Defendant has established that he was prejudiced, either by the late

19 disclosure of Ms. Hern’s medical records or by the inability to take her statement
17

1 before the start of trial. Defendant has not stated with any degree of specificity how

2 his cross-examination of Ms. Hern would have been improved or how he would have

3 prepared differently for trial had he been able to take her statement earlier or had

4 earlier access to her medical records. State v. McDaniel, 2004-NMCA-022, ¶ 13, 135

5 N.M. 84, 84 P.3d 701 (determining that the defendant was not prejudiced by the late

6 disclosure of a witness where he did not show how his cross-examination would have

7 been improved with earlier disclosure or how he would have prepared differently for

8 trial); State v. Vallejos, 2000-NMCA-075, ¶ 35, 129 N.M. 424, 9 P.3d 668

9 (determining that the defendant did not suffer prejudice from late disclosure of

10 witnesses where the defendant did not explain how his cross-examination of the

11 witnesses would have been improved without the late disclosure). In this case,

12 Defendant was aware of Ms. Hern’s preliminary hearing testimony prior to trial, he

13 was able to take her statement before she testified, and he cross-examined her at trial

14 regarding her version of the incidents. Under these circumstances, we do not believe

15 that Defendant was denied his right to confrontation. See State v. Setser,

16 1997-NMSC-004, ¶ 19, 122 N.M. 794, 932 P.2d 484 (filed 1996) (rejecting the

17 defendant’s argument that she was denied her right to confrontation by the late

18 disclosure of a witness where she was able to review the witness’ statement at length
18

1 prior to trial, interview the witness before she testified, and conduct an extensive

2 cross-examination). 

3 Defendant also argues that the district court abused its discretion in denying his

4 motion in limine to exclude Ms. Hern’s testimony. We review the district court’s

5 decision allowing a witness to testify for abuse of discretion. Vallejos,

6 2000-NMCA-075, ¶ 32. In considering whether late disclosure of evidence requires

7 reversal, a reviewing court will consider the following factors: “(1) whether the State

8 breached some duty or intentionally deprived the defendant of evidence; (2) whether

9 the improperly non-disclosed evidence was material; (3) whether the non-disclosure

10 of the evidence prejudiced the defendant; and (4) whether the trial court cured the

11 failure to timely disclose the evidence.” State v. Mora, 1997-NMSC-060, ¶ 43, 124

12 N.M. 346, 950 P.2d 789, abrogation on other grounds recognized by Kersey v. Hatch,

13 2010-NMSC-020, ¶ 17, 148 N.M. 381, 237 P.3d 683.

14 Considering these factors, we do not believe the district court abused its

15 discretion in allowing Ms. Hern to testify. Defendant does not argue that the State’s

16 late disclosure of the medical records was intentional or that it acted to prevent him

17 from taking Ms. Hern’s statement prior to trial. Additionally, for the reasons

18 discussed earlier, we do not believe that Defendant has established prejudice. Finally,

19 it appears that the district court cured any potential prejudice by ordering the State to
19

1 turn over the medical records and to make Ms. Hern available for a statement before

2 she testified. Under these circumstances, we determine there was no abuse of

3 discretion in the trial court’s decision to allow Ms. Hern to testify. 

4 Defendant next argues that the district court committed fundamental error when

5 it informed the jurors at the close of the evidentiary part of the case and before closing

6 arguments that it was only submitting charges for their consideration which the

7 evidence supported. Following the close of evidence, the district court stated to the

8 jury: 

9 Ladies and Gentlemen of the jury I will now instruct you on the law that

10 you will follow in this case. Ladies and Gentlemen I am going to advise

11 you that the Defendant was charged with several counts. The State has

12 elected not to proceed with certain counts and I have dismissed certain

13 counts. You’re not to concern yourselves why the State did that or why

14 the Court decided the way that it did. It is my job to submit those crimes

15 to you for your consideration which the evidence supports. So, there

16 may be a break in the sequence of the crimes and you’ll notice that as I

17 read the instructions. But you are only to consider the crimes that you are

18 specifically instructed on.

19 We do not believe that this constitutes fundamental error. See Cunningham,

20 2000-NMSC-009, ¶ 21 (“Parties alleging fundamental error must demonstrate the

21 existence of circumstances that shock the conscience or implicate a fundamental

22 unfairness within the system that would undermine judicial integrity if left

23 unchecked.” (internal quotation marks omitted)). Defendant argues that the court’s

24 statement impinged on the fairness of the trial by conveying its opinion regarding the
20

1 merits of the case. See State v. Sanchez, 112 N.M. 59, 66, 811 P.2d 92, 99 (Ct. App.

2 1991) (“A trial judge should studiously avoid making any remark or statement in the

3 presence of the jury concerning factual issues or which may be construed as

4 conveying his opinion concerning the merits of the case.”). However, we do not view

5 this as a statement that conveys the district court’s view of the evidence. Further, the

6 court’s statement was not contained in the written instructions that were given to the

7 jury. Additionally, the jury was given UJI 14-6006 NMRA, which states in part:

8 “You are the sole judges of the facts in this case. It is your duty to determine the facts

9 from the evidence produced here in court. . . . You are to apply the law as stated in

10 these instructions to the facts as you find them, and in this way decide the case.” The

11 jury was also given UJI 14-5020 NMRA which states in part: “You alone are the

12 judges of the credibility of the witnesses and the weight to be given to the testimony

13 of each of them.” We presume the jury followed the instructions. See State v.

14 Benally, 2001-NMSC-033, ¶ 21, 131 N.M. 258, 34 P.3d 1134 (“We presume that the

15 jury followed the instructions given by the trial court, not the arguments presented by

16 counsel.”); State v. Sellers, 117 N.M. 644, 650, 875 P.2d 400, 406 (Ct. App. 1994)

17 (“There is a presumption that the jury follows the instructions they are given.”). Also,

18 as discussed earlier, the jury acquitted Defendant of kidnapping. See Lacey,

19 2002-NMCA-032, ¶ 21 (stating that the fact the jury acquitted the defendant of three
21

1 of five charges showed that it was able to carefully apply the law to the facts). We

2 therefore do not believe that the district court’s statement, even if improper,

3 influenced the jury, and we reject this assertion of error. See Sanchez, 112 N.M. at 66,

4 811 P.2d at 99 (stating that a district court’s statement reflecting upon the weight of

5 evidence or credibility of a witness that it is likely to influence the jury is generally

6 determined to be prejudicial).

7 Finally, Defendant argues that the district court erred by limiting the parties to

8 thirty minutes for closing argument. Defendant asserts that the proper standard of

9 review is abuse of discretion. However, Defendant did not make any objection to the

10 limitation on closing arguments at trial, and we therefore review only for fundamental

11 error. See Wyman, 2008-NMCA-113, ¶ 10 (stating that “[o]n appeal, the reviewing

12 court will not consider issues not raised in the trial court unless the issues involve

13 matters of jurisdictional or fundamental error”). Defendant claims that, because of the

14 time limits imposed by the district court, he was unable to address all of the charges

15 and evidence, and this resulted in juror confusion. However, we see no indication in

16 the record that the thirty-minute limitation on closing argument resulted in any

17 prejudice to Defendant. Additionally, we believe Defendant’s bare assertion that the

18 limitation resulted in juror confusion is too speculative to constitute prejudice rising

19 to the level of fundamental error. See State v. Singleton, 2001-NMCA-054, ¶ 19, 130
22

1 N.M. 583, 28 P.3d 1124 (finding no fundamental error where the defendant did not

2 show prejudice); see also Cunningham, 2000-NMSC-009, ¶ 21 (“Parties alleging

3 fundamental error must demonstrate the existence of circumstances that shock the

4 conscience or implicate a fundamental unfairness within the system that would

5 undermine judicial integrity if left unchecked.” (internal quotation marks omitted));

6 Sanchez, 120 N.M. at 253, 901 P.2d at 184 (stating that the district court has wide

7 discretion in controlling closing arguments). 

8 Because we reject all of Defendant’s assertions of error, there is no cumulative

9 error. State v. Fike, 2002-NMCA-027, ¶ 20, 131 N.M. 676, 41 P.3d 944; see State v.

10 Fry, 2006-NMSC-001, ¶ 57, 138 N.M. 700, 126 P.3d 516 (filed 2005) (observing that

11 where no error has been established, there is no basis for a claim of cumulative error).

12 C. Prosecutorial Misconduct

13 Defendant argues that the prosecutor improperly vouched for Ms. Hern’s

14 credibility during rebuttal closing argument. Defendant did not object, and we

15 therefore review for fundamental error. “Fundamental error occurs when

16 prosecutorial misconduct in closing statements compromises a defendant’s right to a

17 fair trial, and we will reverse a conviction despite defense counsel’s failure to object.”

18 State v. Sosa, 2009-NMSC-056, ¶ 35, 147 N.M. 351, 223 P.3d 348. “As with any

19 fundamental error inquiry, we will upset a jury verdict only (1) when guilt is so
23

1 doubtful as to shock the conscience, or (2) when there has been an error in the process

2 implicating the fundamental integrity of the judicial process.” Id.; see State v. Barber,

3 2004-NMSC-019, ¶ 16, 135 N.M. 621, 92 P.3d 633 (“[W]e . . . recognize that . . . the

4 fundamental error doctrine . . . focuses less on guilt and innocence and more on

5 process and the underlying integrity of our judicial system.”).

6 Defendant takes issue with the following statements by the prosecutor during

7 rebuttal argument:

8 The simple facts as I just covered here . . . they point to the case, to the

9 facts that this actually happened. It is not a fiction. She didn’t make it

10 up. Even if there was like five percent of what he’s saying is all made

11 up, it still, the actions happened. . . . 

12 They have no shame. This is all made up? This is [a] Hollywood

13 movie? No, this is true. These things actually happened. She testified.

14 Does she wish they never happened? I’m sure. Does she wish she never

15 got into this relationship? Sure, but it happened. . . .

16 If you see everything that she had reported, it’s consistent to show that

17 this really did happen. It’s truthful, was honest, and really occurred in

18 history, in time during those days between [January] fifth and the

19 seventeenth.

20 Pointing in particular to the statements, “[s]he didn’t make it up,” “this is true,”

21 and “[i]t’s truthful, was honest, and really occurred,” Defendant argues that this

22 constituted impermissible vouching for the credibility of the victim. We disagree.

23 Generally speaking, vouching involves either “invoking . . . authority and prestige of

24 the prosecutor’s office or . . . suggesting the prosecutor’s special knowledge.” State
24

1 v. Pennington, 115 N.M. 372, 381, 851 P.2d 494, 503 (Ct. App. 1993). We see

2 nothing in the prosecutor’s statements to suggest that he was invoking the authority

3 and prestige of his office. Nor do the comments suggest the prosecutor had special

4 knowledge. Rather, the prosecutor’s comments are sufficiently focused on the

5 arguments that the other evidence and testimony in the case was consistent with Ms.

6 Hern’s testimony so as not to raise the concerns associated with vouching. See id.

7 (observing that the prohibition against prosecutorial “vouching stems from concerns

8 that such comments may lead a jury to rest its decision on the prosecutor’s personal

9 integrity or authority”). When the prosecutor’s rebuttal argument is viewed in its

10 entirety and in light of Defendant’s closing argument, which was focused on

11 suggesting that Ms. Hern’s account of the incidents was not credible in that it

12 constituted a “fantastic story,” “too bizarre to believe,” “stretch[ing] the truth to the

13 breaking point,” and untrue because it kept changing, the prosecutor’s statements were

14 an appropriate argument that the evidence supported Ms. Hern’s version of the events.

15 Cf. id. (determining that the prosecutor’s reference to her ethical obligations followed

16 by her assertion that the witness was not lying was impermissible vouching for the

17 credibility of the witness). For these reasons, we hold that the prosecutor’s statements

18 did not rise to the level of misconduct.
25

1 In addition, even had error occurred, we do not believe that the prosecutor’s

2 statements rise to the level of fundamental error. There is no indication that the

3 prosecutor’s remarks deprived Defendant of a fair trial, and we again note that the jury

4 acquitted Defendant of kidnapping, the most serious of the charges he faced. Cf. State

5 v. Wildgrube, 2003-NMCA-108, ¶ 33, 134 N.M. 262, 75 P.3d 862 (determining that

6 the defendant was not prejudiced by the prosecutor’s isolated remark because the jury

7 acquitted the defendant of one of the charges indicating that the prosecutor did not

8 undermine the jury’s ability to judge the evidence fairly). 
26

1 D. Double Jeopardy

2 Defendant argues that his right to be free from double jeopardy was violated

3 when his sentences for aggravated assault and aggravated battery with a deadly

4 weapon were enhanced by one year pursuant to NMSA 1978, Section 31-18-16(A)

5 (1993). Section 31-18-16(A) provides that the basic sentence of imprisonment for a

6 non-capital felony shall be enhanced by one year upon a finding that a firearm was

7 used in the commission of the crime.

8 “Among its protections, the double jeopardy clause protects a defendant against

9 multiple punishments for the same offense.” State v. Gonzales, 2007-NMSC-059,

10 ¶ 11, 143 N.M. 25, 172 P.3d 162. “In cases where the defendant is charged with

11 violation of multiple statutes for the same conduct (“double-description” cases), we

12 must determine whether the [L]egislature intended to authorize multiple punishments

13 for the same offense.” Id.; see State v. Caldwell, 2008-NMCA-049, ¶ 10, 143 N.M.

14 792, 182 P.3d 775 (“The sole limitation on multiple punishments is legislative intent.”

15 (internal quotation marks and citation omitted)). “Absent a clear expression of

16 legislative intent, a court first must apply the Blockburger [v. United States, 284 U.S.

17 299 (1932),] test to the elements of each statute.” Swafford v. State, 112 N.M. 3, 14,

18 810 P.2d 1223, 1234 (1991). “In applying the Blockburger test, this Court compares

19 the elements of each crime with the elements of the other to determine whether the
27

1 Legislature intended separate punishments under each statute.” State v. Lee,

2 2009-NMCA-075, ¶ 9, 146 N.M. 605, 213 P.3d 509. “In applying the Blockburger

3 test, if we conclude that each statute requires proof of an element that the other does

4 not, then a presumption arises that our [L]egislature intended for the conduct to result

5 in separately punishable offenses.” Caldwell, 2008-NMCA-049, ¶ 11. 

6 In State v. Charlton, 115 N.M. 35, 846 P.2d 341 (Ct. App. 1992), this Court

7 held that imposition of the firearm enhancement on a conviction for aggravated assault

8 with a deadly weapon does not violate double jeopardy because the Legislature

9 intended to impose multiple punishments. See id. at 40-41, 846 P.2d at 346-47

10 (determining that the aggravated assault with a deadly weapon statute and the firearm

11 enhancement statute each contain an element that the other does not). In State v.

12 Gonzales, 95 N.M. 636, 638-39, 624 P.2d 1033, 1035-37 (Ct. App. 1981), overruled

13 on other grounds by Buzbee v. Donnelly, 96 N.M. 692, 634 P.2d 1244 (1981), this

14 Court determined that imposition of the firearm enhancement on a conviction for

15 aggravated battery with a deadly weapon does not violate double jeopardy. See State

16 v. Gabaldon, 92 N.M. 230, 234-35, 585 P.2d 1352, 1356-57 (Ct. App. 1978)

17 (determining that imposition of a firearm enhancement on a conviction for robbery

18 while armed with a deadly weapon did not violate double jeopardy).
28

1 Defendant argues that our case law can be distinguished and asks us to compare

2 the elements of the offenses as stated in the jury instructions for aggravated battery

3 and aggravated assault with the firearm enhancement jury instruction to determine

4 whether the offenses require proof of an element that the other does not. Defendant

5 argues that, because the jury was specifically instructed that it had to find that

6 Defendant used a firearm in order to convict him of aggravated battery and aggravated

7 assault, the crimes do not each contain a different element, and the offenses should

8 merge. However, in determining whether the conviction of multiple offenses for

9 unitary conduct violates double jeopardy, we examine the relevant statutes, not the

10 jury instructions. See State v. Franco, 2005-NMSC-013, ¶ 12, 137 N.M. 447, 112

11 P.3d 1104 (stating that “[u]nder the Blockburger test, [appellate courts] compare the

12 elements of the relevant statutes to determine whether the Legislature intended to

13 authorize separate punishments under each statute”); State v. Carrasco,

14 1997-NMSC-047, ¶ 23, 124 N.M. 64, 946 P.2d 1075 (“We answer the question of

15 whether the Legislature intended multiple punishments for unitary conduct by asking

16 whether each statute proscribing the offense requires proof of a fact the other does

17 not.”). Defendant cites to no authority for his argument that the relevant inquiry is the

18 jury instructions, and we therefore assume that none exists. See In re Adoption of

19 Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984) (stating that an appellate court
29

1 will not consider an issue if no authority is cited in support of the issue and will

2 assume no such authority exists). We therefore reject Defendant’s argument that his

3 right to be free from double jeopardy was violated by imposition of the firearm

4 enhancement in this case. 

5 III. Conclusion

6 For these reasons, we affirm Defendant’s convictions and sentence.

7 IT IS SO ORDERED.

8 __________________________________

9 JONATHAN B. SUTIN, Judge

10 WE CONCUR:

11 ____________________________

12 JAMES J. WECHSLER, Judge

13 ____________________________

14 LINDA M. VANZI, Judge